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2015 (12) TMI 1527

Head Note:
Detention orders under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - non opportunity to assail the order of his detention - Held that:- In the facts and circumstances of the present case, it is apparent, that the order of detention under Section 3 of the COFEPOSA Act was passed on 11.6.1976. Immediately after the passing of the aforesaid order, on the same day, the Government of Gujarat issues a declaration under Section 12A, with reference to the detention of the appellant. Again, on the lifting of the emergency on 21.3.1977, the declaration under Section 12A ceased to be operative, with reference to the detention of the appellant. At the beginning of the order of detention, and at the time of revocation thereof, whilst the detention order subsisted only within the limited scope of Section 3 of the COFEPOSA Act read with Section 12A thereof, there was really no occasion for the appellant to assail the same thereafter, on any of the grounds as may have been available to him.

We are satisfied, that in the facts and circumstances of this case, specially the position highlighted by the learned counsel for the appellant, as has been noticed hereinabove, the appellant had no occasion whatsoever to challenge to the order of his detention, on the grounds available to him, while the detention order subsisted under the limited scope of Section 3 of the COFEPOSA Act read with Section 12A thereof after 21.3.1977, as the order under Section 3 could not have been the subject matter of challenge as the detenu was released on the same day.

In the present controversy, the appellant had no opportunity whatsoever to assail the order of his detention, after his release. As soon as the declaration under Section 12A of the COFEPOSA Act was revoked, the appellant was ordered to be released. His release undoubtedly was a release from detention under Section 3 of the COFEPOSA Act.

In the above view of the matter, we are of the view, that the determination rendered by the High Court in not allowing the appellant to raise a challenge to the order of his detention dated 11.6.1976, was wholly unjustified. The order passed by the High Court is therefore liable to be set aside. The same is accordingly hereby set aside. The appellant is relegated back to the High Court, so as to enable him to press his claim, on the grounds as may be available to him (to assail the order of his detention dated 11.6.1976). It is only after the determination of the High Court, that it will be open to the authorities to proceed with the action taken against the appellant under Section 6 of the SAFEMA Act, and that too, if the appellant fails in his attempt, to successfully assail the order of his detention.

 

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